FOIA Project Annotation: Recognizing the huge increase in FOIA requests at the Department of Justice since the beginning of the Trump administration, Judge Amit Mehta has granted the agency a temporary stay to process a request from the Democracy Forward Foundation pertaining to records sent to the Office of Legal Policy by or on behalf of individuals nominated for judgeships on federal courts of appeals since the beginning of the Trump administration. Mehta's admission confirms the recent FOIA Project statistical analysis of the filing of FOIA suits by non-profits that found that while 209 non-profits had filed suit in 2016, the last year of the Obama administration, that number grew at a rate of 100 new suits every six months since the beginning of the Trump administration, reaching more than 500 suits by July 2018. In response to DFF's request, the Office of Information Policy told the organization that its request had been referred to OLP and that it had been placed on the complex track for processing. Several weeks later, OIP told DFF that because of the need to consult with another office, unusual circumstances existed warranting a further extension of time for processing the request. In response, DFF agreed to narrow the request to six individuals who had been nominated to serve on the D.C. Circuit or the Fifth Circuit. Four months later, OIP filed a motion to stay the proceedings, arguing that it had experienced an unanticipated increase in FOIA requests. Seven other public interest organizations â€" American Oversight, CREW, National Security Counselors, Openthegovernment.org, the Project on Government Oversight, Public Citizen, and Sunlight Foundation â€" filed an amicus brief supporting DFF. Mehta began by explaining that recognition of a stay of proceedings stemmed from the D.C. Circuit's 1976 decision, Open America v. Watergate Special Prosecution Force, 547 F.2d 605 (D.C. Cir. 1976), holding that an agency could be granted a delay in processing a FOIA request when an agency is deluged with a volume of requests vastly in excess of that anticipated by Congress, its existing resources are inadequate, and it is exercising due diligence in responding to requests. The Open America standard was codified in the 1996 EFOIA amendments with the caveat that a routine, predictable agency backlog of FOIA requests did not constitute exceptional circumstances. Mehta noted that the predictable backlog limitation meant that "it is not enough that an agency receives a high number of FOIA requests, or even that an agency has a large backlog of requests to which it must respond. Rather, an agency must show that the number of requests received in the relevant period was truly unforeseen and remarkable." DFF disputed whether the increase in FOIA requests received by OIP was unanticipated. Mehta found the agency's affidavit persuasive. OIP provided a chart showing the number of FOIA requests it received from FY08 through FY18. In FY08, OIP received 904 requests, which had doubled in eight years to 1,803 requests in FY16, the last year of the Obama administration. But OIP's requests increased by more than a thousand, to 2,818 in FY17 and jumped further in FY18 to 3,396. Mehta remarked that "the average annual increase from FY 2008 to FY 2016 was 100 requests. Compare that to the spike experienced in the last two years. From FY 2016 to FY 2017, the number of FOIA requests increased by 1,015 â€" a ten-fold increase over the average increase over the prior nine years. The number of requests is expected to increase by 578, a more than five-fold increase over the pace seen from FY 2008 to FY 2016. What these large spikes mean is that OIP has seen a near doubling of FOIA demands over a two-year period, when it previously took eight years for the number of requests to double. Congress surely could not have anticipated such a dramatic acceleration of the number of requests for information made of OIP." DFF argued that the increase was not dramatic, pointing out that OIP's recent increases were in line with steady increases in the past years. Mehta disagreed, noting that "while the number of FOIA requests steadily increased from 2008 to 2016, the increases in the last two years have far exceeded what OIP experienced during that earlier period." DFF also argued that Congress had increased DOJ's budget in the last three fiscal years, implying that Congress had increased the agency's budget to off-set any anticipated increase in requests. Mehta was not convinced. He observed that "Congress, however, can increase an agency's appropriations for any number of reasons that have nothing to do with FOIA. A general increase in appropriations for the Department of Justice thus tells the court nothing about what Congress actually foresaw as to the future rate of FOIA requests." Mehta found OIP had made efforts to deal with the sudden increase in requests. According to OIP, it "reorganized its staff to create a dedicated team to handle less time-consuming matters such as new requests, search initiation, requester negotiations, and 'simple track' requests (as opposed to 'complex' or 'expedited' track requests). The reorganization resulted in improved processing time for 'simple track' requests. Correspondingly, 'complex' and 'expedited' track processing times likewise improved because staff assigned to such requests could concentrate on those types of cases." Although OIP did not get more funding to increase its staff, Mehta noted that "OIP has responded by reassigning other OIP staff to FOIA processing on an ad hoc basis, and it has made modest staff additions to the FOIA team." DFF complained that DOJ had actually requested less funding and had tried to reduce the number of employees funded through the agency's general appropriations, under which OIP operated. Saying "these are fair criticisms," Mehta pointed out that "it is not the role of the judiciary to question how executive agencies request and allocate resources, absent some compelling evidence of purposeful conduct." He observed that "the court simply is not in a position, at this point, to fairly judge whether the agency's budgetary decision-making reflects an indifference to its FOIA obligations or is attributable to other political facts to which the court is not privy." Mehta found the agency had shown that a sudden unanticipated increase in requests was the primary reason for its delay. He granted OIP a stay until the end of January 2019.
Issues: Delay - Stay of proceedings

NOTICE OF CORRECTED DOCKET ENTRY: Document No. re 5 Summons Returned Executed as to Federal Defendant was entered in error and counsel was instructed to refile said pleading using the correct event(s) and must select each defendant and not the plaintiff. (jf) (Entered: 04/17/2018)

2018-04-19

6

RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. DEPARTMENT OF JUSTICE served on 4/5/2018, RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 4/5/18., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 4/5/2018. ( Answer due for ALL FEDERAL DEFENDANTS by 5/5/2018.) (Attachments: # 1 Declaration)(Thurston, Robin) (Entered: 04/19/2018)

ORDER. Both a Complaint and an Answer are now before the court in this FOIA case. It is hereby ordered that the parties shall meet and confer and file a Joint Status Report on or before May 23, 2018. See attached Order for details. Signed by Judge Amit P. Mehta on 05/09/2018. (lcapm3) (Entered: 05/09/2018)

MINUTE ORDER entering the Open America briefing schedule proposed in the parties' 11 Joint Status Report. The schedule for further proceedings in this matter is as follows: (1) Defendant's Motion for a Stay shall be filed no later than June 22, 2018; (2) Plaintiff's Opposition shall be filed no later than July 13, 2018; (3) Defendant's Reply shall be filed no later than July 27, 2018. Signed by Judge Amit P. Mehta on 05/24/2018. (lcapm3) (Entered: 05/24/2018)

2018-05-24

Set/Reset Deadlines: Defendant's Motion for Stay due by 6/22/2018. Plaintiff's Opposition due by 7/13/2018. Defendant's Reply due by 7/27/2018. (zjd) (Entered: 05/25/2018)

MINUTE ORDER granting 13 Motion for Extension of Time. The schedule for further proceedings in this matter is as follows: Plaintiff's Opposition to Defendant's 12 Motion for Stay shall be filed no later than July 20, 2018; and Defendant's Reply shall be filed no later than August 8, 2018. Signed by Judge Amit P. Mehta on 07/10/2018. (lcapm3) (Entered: 07/10/2018)

MINUTE ORDER granting 14 Motion for Leave to File Amicus Curiae Brief in support of Plaintiff's Opposition to Defendant's Motion for Stay of Proceedings. Signed by Judge Amit P. Mehta on 07/23/2018. (lcapm3) (Entered: 07/23/2018)

2018-07-23

16

AMICUS BRIEF re 12 MOTION to Stay by AMERICAN OVERSIGHT, CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, NATIONAL SECURITY COUNSELORS, OPEN THE GOVERNMENT, PROJECT ON GOVERNMENT OVERSIGHT, PUBLIC CITIZEN, INC., SUNLIGHT FOUNDATION. (jf) (Entered: 07/24/2018)

MEMORANDUM OPINION and ORDER granting 12 Defendant Department of Justice's Motion for Stay. These proceedings shall be stayed until January 13, 2019, and this court will retain jurisdiction over this matter. Please see attached Order for additional details. Signed by Judge Amit P. Mehta on 12/07/2018. (lcapm1) (Entered: 12/07/2018)

MOTION to Stay in Light of Lapse of Appropriations by DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Snell, Kevin) (Entered: 01/04/2019)

2019-01-07

21

NOTICE of Non-Opposition to Motion for a Stay in Light of Lapse of Approriations by DEPARTMENT OF JUSTICE (Snell, Kevin) (Entered: 01/07/2019)

2019-01-08

MINUTE ORDER granting 20 Motion for a Stay. This matter is hereby stayed. Within three business days of Department of Justice operations resuming, Defendant shall notify the court by when the parties will file their Joint Status Report. Signed by Judge Amit P. Mehta on 01/08/2019. (lcapm3) (Entered: 01/08/2019)

2019-01-29

22

NOTICE to the Court of Restoration of Appropriations and Anticipated Filing Date by DEPARTMENT OF JUSTICE (Snell, Kevin) (Entered: 01/29/2019)

2019-01-29

MINUTE ORDER. The parties shall file their next Joint Status Report no later than March 20, 2019. Signed by Judge Amit P. Mehta on 01/29/2019. (lcapm3) (Entered: 01/29/2019)

MINUTE ORDER. The parties shall file a Joint Status Report by August 20, 2019, which proposes next steps in this matter. If further litigation will be required, the parties shall recommend a briefing schedule. Signed by Judge Amit P. Mehta on 3/22/2019. (lcapm2) (Entered: 03/22/2019)

MINUTE ORDER. The parties shall file a Joint Status Report by November 20, 2019, recommending a schedule for further proceedings, if necessary. Signed by Judge Amit P. Mehta on 8/22/2019. (lcapm3) (Entered: 08/22/2019)